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Preserving Democracy:
What Went Wrong in Ohio
Status Report of the House Judiciary Committee Democratic Staff

Wednesday 05 January 2005

Executive Summary

Representative John Conyers, Jr., the Ranking Democrat on the House 
Judiciary Committee, asked the Democratic staff to conduct an 
investigation into irregularities reported in the Ohio presidential 
election and to prepare a Status Report concerning the same prior to 
the Joint Meeting of Congress scheduled for January 6, 2005, to receive 
and consider the votes of the electoral college for president. The 
following Report includes a brief chronology of the events; summarizes 
the relevant background law; provides detailed findings (including 
factual findings and legal analysis); and describes various 
recommendations for acting on this Report going forward.

We have found numerous, serious election irregularities in the Ohio 
presidential election, which resulted in a significant 
disenfranchisement of voters. Cumulatively, these irregularities, which 
affected hundreds of thousand of votes and voters in Ohio, raise grave 
doubts regarding whether it can be said the Ohio electors selected on 
December 13, 2004, were chosen in a manner that conforms to Ohio law, 
let alone federal requirements and constitutional standards.

This report, therefore, makes three recommendations: (1) consistent 
with the requirements of the United States Constitution concerning the 
counting of electoral votes by Congress and Federal law implementing 
these requirements, there are ample grounds for challenging the 
electors from the State of Ohio; (2) Congress should engage in further 
hearings into the widespread irregularities reported in Ohio; we 
believe the problems are serious enough to warrant the appointment of a 
joint select Committee of the House and Senate to investigate and 
report back to the Members; and (3) Congress needs to enact election 
reform to restore our people's trust in our democracy. These changes 
should include putting in place more specific federal protections for 
federal elections, particularly in the areas of audit capability for 
electronic voting machines and casting and counting of provisional 
ballots, as well as other needed changes to federal and state election 
laws.

With regards to our factual finding, in brief, we find that there 
were massive and unprecedented voter irregularities and anomalies in 
Ohio. In many cases these irregularities were caused by intentional 
misconduct and illegal behavior, much of it involving Secretary of 
State J. Kenneth Blackwell, the co-chair of the Bush-Cheney campaign in 
Ohio.

First, in the run up to election day, the following actions by Mr. 
Blackwell, the Republican Party and election officials disenfranchised 
hundreds of thousands of Ohio citizens, predominantly minority and 
Democratic voters:

*       The misallocation of voting machines led to unprecedented long lines 
that disenfranchised scores, if not hundreds of thousands, of 
predominantly minority and Democratic voters. This was illustrated by 
the fact that the Washington Post reported that in Franklin County, "27 
of the 30 wards with the most machines per registered voter showed 
majorities for Bush. At the other end of the spectrum, six of the seven 
wards with the fewest machines delivered large margins for Kerry." (See 
Powell and Slevin, supra). Among other things, the conscious failure to 
provide sufficient voting machinery violates the Ohio Revised Code 
which requires the Boards of Elections to "provide adequate facilities 
at each polling place for conducting the election."
*       Mr. Blackwell's decision to restrict provisional ballots resulted in 
the disenfranchisement of tens, if not hundreds, of thousands of 
voters, again predominantly minority and Democratic voters. Mr. 
Blackwell's decision departed from past Ohio law on provisional 
ballots, and there is no evidence that a broader construction would 
have led to any significant disruption at the polling places, and did 
not do so in other states.
*       Mr. Blackwell's widely reviled decision to reject voter registration 
applications based on paper weight may have resulted in thousands of 
new voters not being registered in time for the 2004 election.
*       The Ohio Republican Party's decision to engage in preelection 
"caging" tactics, selectively targeting 35,000 predominantly minority 
voters for intimidation had a negative impact on voter turnout. The 
Third Circuit found these activities to be illegal and in direct 
violation of consent decrees barring the Republican Party from 
targeting minority voters for poll challenges.
*       The Ohio Republican Party's decision to utilize thousands of partisan 
challengers concentrated in minority and Democratic areas likely 
disenfranchised tens of thousands of legal voters, who were not only 
intimidated, but became discouraged by the long lines. Shockingly, 
these disruptions were publicly predicted and acknowledged by 
Republican officials: Mark Weaver, a lawyer for the Ohio Republican 
Party, admitted the challenges "can't help but create chaos, longer 
lines and frustration."
*       Mr. Blackwell's decision to prevent voters who requested absentee 
ballots but did not receive them on a timely basis from being able to 
receive provisional ballots 6 likely disenfranchised thousands, if not 
tens of thousands, of voters, particularly seniors. A federal court 
found Mr. Blackwell's order to be illegal and in violation of HAVA.



Second, on election day, there were numerous unexplained anomalies 
and irregularities involving hundreds of thousands of votes that have 
yet to be accounted for:

*       There were widespread instances of intimidation and misinformation in 
violation of the Voting Rights Act, the Civil Rights Act of 1968, Equal 
Protection, Due Process and the Ohio right to vote. Mr. Blackwell's 
apparent failure to institute a single investigation into these many 
serious allegations represents a violation of his statutory duty under 
Ohio law to investigate election irregularities.
*       We learned of improper purging and other registration errors by 
election officials that likely disenfranchised tens of thousands of 
voters statewide. The Greater Cleveland Voter Registration Coalition 
projects that in Cuyahoga County alone over 10,000 Ohio citizens lost 
their right to vote as a result of official registration errors.
*       There were 93,000 spoiled ballots where no vote was cast for 
president, the vast majority of which have yet to be inspected. The 
problem was particularly acute in two precincts in Montgomery County 
which had an undervote rate of over 25% each - accounting for nearly 
6,000 voters who stood in line to vote, but purportedly declined to 
vote for president.
*       There were numerous, significant unexplained irregularities in other 
counties throughout the state: (i) in Mahoning county at least 25 
electronic machines transferred an unknown number of Kerry votes to the 
Bush column; (ii) Warren County locked out public observers from vote 
counting citing an FBI warning about a potential terrorist threat, yet 
the FBI states that it issued no such warning; (iii) the voting records 
of Perry county show significantly more votes than voters in some 
precincts, significantly less ballots than voters in other precincts, 
and voters casting more than one ballot; (iv) in Butler county a down 
ballot and underfunded Democratic State Supreme Court candidate 
implausibly received more votes than the best funded Democratic 
Presidential candidate in history; (v) in Cuyahoga county, poll worker 
error may have led to little known thirdparty candidates receiving 
twenty times more votes than such candidates had ever received in 
otherwise reliably Democratic leaning areas; (vi) in Miami county, 
voter turnout was an improbable and highly suspect 98.55 percent, and 
after 100 percent of the precincts were reported, an additional 19,000 
extra votes were recorded for President Bush.



Third, in the post-election period we learned of numerous 
irregularities in tallying provisional ballots and conducting and 
completing the recount that disenfanchised thousands of voters and call 
the entire recount procedure into question (as of this date the recount 
is still not complete):

*       Mr. Blackwell's failure to articulate clear and consistent standards 
for the counting of provisional ballots resulted in the loss of 
thousands of predominantly minority votes. In Cuyahoga County alone, 
the lack of guidance and the ultimate narrow and arbitrary review 
standards significantly contributed to the fact that 8,099 out of 
24,472 provisional ballots were ruled invalid, the highest proportion 
in the state.
*       Mr. Blackwell's failure to issue specific standards for the recount 
contributed to a lack of uniformity in violation of both the Due 
Process Clause and the Equal Protection Clauses. We found innumerable 
irregularities in the recount in violation of Ohio law, including (i) 
counties which did not randomly select the precinct samples; (ii) 
counties which did not conduct a full hand court after the 3% hand and 
machine counts did not match; (iii) counties which allowed for 
irregular marking of ballots and failed to secure and store ballots and 
machinery; and (iv) counties which prevented witnesses for candidates 
from observing the various aspects of the recount.
*       The voting computer company Triad has essentially admitted that it 
engaged in a course of behavior during the recount in numerous counties 
to provide "cheat sheets" to those counting the ballots. The cheat 
sheets informed election officials how many votes they should find for 
each candidate, and how many over and under votes they should calculate 
to match the machine count. In that way, they could avoid doing a full 
county-wide hand recount mandated by state law.


(In accordance with Title 17 U.S.C. Section 107, this material is 
distributed without profit to those who have expressed a prior interest 
in receiving the included information for research and educational 
purposes. t r u t h o u t has no affiliation whatsoever with the 
originator of this article nor is t r u t h o u t endorsed or sponsored 
by the originator.)

 : t r u t h o u t 2005